Digest:An administrative judge who is required to transmit the name of an
individual recommended for a particular appointment to the appointing
authority, but has ethical or administrative concerns about the
suitability of the appointment, should advise the appointing authority of
his/her concerns when transmitting the individual’s name.

An administrative judge asks about his/her ethical obligations with respect to
the application of the parent, spouse, or child of a sitting judge for appointment to a
high-level position where the applicant would “work[] directly with” and “take[]
direction from” certain judges subject to the inquirer’s supervision, including the
applicant’s judicial relative.1 The inquiring judge is concerned that if this particular
applicant is appointed, the familial relationship could result in “negative operational
consequences” and “an appearance of impropriety.” The judge explains that voting
members of a particular board will make the initial recommendation for the
appointment, and thereafter, the administrative judge must “submit the name of the
individual for appointment” to the appointing authority. Because a majority of the
members of the board are judges subject to the inquiring judge’s supervision, the
judge states that he/she is also “very uncomfortable” that the judicial members of
the board have been placed in a position where they must vote for or against an
applicant who is a colleague’s relative. The judge asks for advice about his/her
ethical obligations under these circumstances.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR
100.2) and must always act to promote public confidence in the judiciary’s integrity
and impartiality (see 22 NYCRR 100.2[A]). A judge must “respect and comply” with
the law (id.), and must not allow family, social, political or other relationships to
influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]).
Moreover, a judge must maintain professional competence in judicial administration
(see 22 NYCRR 100.3[C][1]) and must exercise the power of appointment impartially
and on the basis of merit, avoiding nepotism and favoritism (see 22 NYCRR
100.3[C][3]).

The Committee notes that it is not yet known which applicant will be
recommended for the position in question. If the inquiring judge has concerns about
the suitability of the individual ultimately recommended for the appointment –
including, but not limited to, the specific ethical and administrative concerns the
judge has outlined in the present inquiry - the judge should advise the appointing
authority of his/her concerns when complying with his/her obligation to transmit the
name of the individual the board has recommended.

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1 Under the specific circumstances presented, the Committee assumes, without
deciding, that Rule 8 of the Rules of the Chief Judge relating to the appointment of
judges’ relatives does not prohibit the appointment (see 22 NYCRR 8; 100.3[C][3]).